damages for personal injury: non-pecuniary loss - Law Commission

claimant could no longer pursue a hobby which had involved expenditure, his or
her damages should be reduced to reflect the savings resulting from having to give
up the pursuit. They each differed, however, on how the savings should be taken
into account. In its 1973 Report, the Law Commission rejected such a deduction.
In our consultation paper we thought it strongly arguable that the case for a
deduction falsely treated the assessment of damages for non-pecuniary loss as a
precise calculation as if one were assessing a pecuniary loss. 65
2.66 We were (and remain) unaware of subsequent cases in which the deduction
suggested in Fletcher 66
has been made, and so we did not regard this as a major
consultation issue. Nevertheless we asked consultees if it caused difficulty, and, if
so, what the solution to that difficulty should be.
2.67 Consultees who responded to this question were overwhelmingly of the view that
there is no difficulty with this issue in practice. Fletcher v Autocar and Transporters
Ltd 67
is rarely cited and generally ignored. This was thought to be right in
principle. Consultees made various arguments to this effect. For example, it is
irrelevant to the question of what the claimant has lost to ask how he or she
proposes to spend his or her money, which the argument for a deduction
effectively does. Moreover, if any set-off is to be made, it should not, in principle,
be against damages for loss of amenity or loss of earnings, but against the cost of
substitute hobbies. It would also be impractical to require deductions in respect of
money saved from lost hobbies, as this would involve complicated enquiries and
calculations, for very little tangible benefit.
2.68 In the light of consultees’ responses, we make no recommendation for
changing the law on the question of the overlap (between damages for loss
of earnings and for loss of amenity) raised in Fletcher v Autocar and
Transporters Ltd. 68
65 See Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140,
para 2.38.
66 [1968] 2 QB 322.
67 Ibid.
68 Ibid.
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